On June 22, 2021, Judge Jacqueline Scott Corley of the U.S. District Court of the Northern District of California issued an order granting summary judgment in favor of the plaintiff, Behring Regional Center, in the lawsuit Behring filed against the Department of Homeland Security (“DHS”). The order was given in the matter of Behring Regional Center LLC V. Chad Wolf, et al.
Behring Regional Center filed the lawsuit against the DHS challenging whether the Acting Secretary of Homeland Security, Chad Wolf, had been legally appointed to his position at the time the EB-5 Immigrant Investor Program Modernization regulation (the “EB-5 Regulation”) came into effect on November 21, 2019.
Under the EB-5 Regulation, the most important change to the program was the increase in the minimum investment amount from $500,000 to $900,000 for investments made in a Targeted Employment Areas that qualify for this lower investment amount.
In its lawsuit, Behring requested the Court to issue a judgment that the EB-5 Regulation is vacated (no longer valid) because acting Secretary Wolf was not lawfully serving in his role at the time the final rule was issued. The Court agreed and set aside the EB-5 Regulation and has remanded the matter back to the Department of Homeland Security.
Behring also requested the Court to issue an injunction barring the current, properly appointment Secretary of Homeland Security, Alejandro Mayorkas, from reinstating the EB-5 Regulation for a period of 180 days. The Court denied this request.
As of right now, the EB-5 Regulation is no longer the law of the EB-5 immigrant visa program. How long this will last is uncertain.
The DHS could file an appeal with a Court of Appeals and also request its own injunction to stop the District Court’s decision from taking affect pending the appeal process. If the higher Court approves such an injunction, the EB-5 Regulation will remain in place. Whether it does or not, the DHS is likely to move quickly to reauthorize the EB-5 Regulation by following the proper procedures under the Administrative Procedures Act. This process might take 60 to 90 days or longer.
For investors who have been considering EB-5 as a way to immigrate to the U.S. and want to take advantage of the lower investment amount of $500,000 should move quickly to file their EB-5 petitions before this window of opportunity closes and should also understand the potential risks of filing an EB-5 I-526 Petition under this time of uncertainty.
Update: The EB-5 Regional Center Program Will Lapse on June 30, 2021
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